1643053 Ontario Limited o/a Diavolo v. Registrar of Alcohol and Gaming, 2013 CanLII 69320

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-10-31

FILE:

8202/AGRPPA

CASE NAME:

8202 v. Registrar of Alcohol and Gaming

Appeal from an Order of Monetary Penalty of the Registrar of Alcohol and Gaming under the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26

1643053 Ontario Limited o/a Diavolo

Applicant

-and-

Registrar of Alcohol and Gaming

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Simon Dann, Member

APPEARANCES:

For the Applicant:

Michael Puskas, Counsel

For the Respondent:

Joyce Taylor, Counsel

Heard in Hamilton:

October 8, 2013

DECISION AND ORDER

BACKGROUND

This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of an Order of Monetary Penalty issued by the Registrar of Alcohol and Gaming, under the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the “Registrar” and the “Act” respectively).

The Order dated June 14, 2013, imposed a monetary penalty on 1643053 Ontario Limited o/a Diavolo (“Applicant/Diavolo/Licensee”), with respect to a contravention of section 43 of Ontario Regulation 719/90 and that the licence holder failed to ensure that the number of persons on the premises to which the licence applies, including employees of the licence holder, did not exceed the capacity of the licensed premises as stated on the licence.

PRELIMINARY MATTERS

On request and consent of the parties, the Tribunal made an order for the exclusion of witnesses.

Counsel for the Respondent, Ms. Taylor, asked (i) that the Applicant's disclosure documents not be allowed as they were only received by her the day before the hearing, and (ii) that the Applicant's witnesses not be allowed to give their evidence as Ms. Taylor expected they would provide testimony regarding evidence contained in the late disclosure materials.

Counsel for the Applicant, Mr. Puskas, requested the hearing be adjourned to allow for appropriate review of the disclosure materials. The Tribunal ruled to refuse the adjournment request but to allow the Applicant's witnesses to give their testimony. The Tribunal advised the parties that it would take note of Ms. Taylor's objection.

The Tribunal also ruled to disallow the late disclosure materials as the Tribunal's disclosure Rule 6 was reviewed with the parties at the pre-hearing and is quite clear about the timing requirements.

THE REGISTRAR’S EVIDENCE

The Registrar's Counsel presented four witnesses, two being AGCO inspectors and the other two being Hamilton police officers who accompanied the inspectors the night of their inspection.

The AGCO inspectors, Leah Wlodarek and Brian Sharpe, who respectively have 6 and 7 years of experience, arrived at the establishment just after 1:00 a.m. on April 6, 2013.

The inspectors testified that they observed the patio was not busy. They observed that security was posted at the patio, which had to be crossed in order to reach the establishment's front door but they did not observe any security when they actually went into Diavolo.

The inspectors noted the interior was very crowded with patrons standing shoulder to shoulder. Ms. Wlodarek said she proceeded to take a count of the number of patrons in the bar and said it took her about 6 or 7 minutes to complete her count.

Ms. Wlodarek described the establishment as a small one, running lengthwise, east to west with the patio on the north side of the building. On entering, there is a raised stage on the left, the bar is on the right, the ground floor in front and a raised section on the south wall is a section with seating for patrons. While she found it difficult to move through, as for the most part the crowd was standing still, she found the count easier to do because of the raised section that allowed her to look down and count heads. She did not observe anyone leaving.

Mr. Sharpe's testimony agreed with Ms. Wlodarek's in that the establishment was very crowded with people standing shoulder-to-shoulder. He said he had to keep his hands to his sides so as not to accidentally bump into any patrons as he manoeuvred his way through the crowd, separately from Ms. Wlodarek, to complete his count.

The two inspectors, using mechanical “clicker” counters provided to them by AGCO, had different counts. Ms. Wlodarek counted 127 people and she said it took her about 6 to 7 minutes to complete the count. It was pointed out that even the lower number of 127 people was over the licensed capacity of 100.

Mr. Sharpe counted 131 people and it took him about 2 and a 1/2 minutes to complete the count. Mr. Sharpe said he had been to the establishment on numerous previous occasions ("maybe 10") while Ms. Wlodarek said this was her first visit.

The discrepancy between the two counts was described by Ms. Wlodarek as being quite standard and that a difference of 4 was considered as being accurate. She added that if the difference had been more than 10, it would ordinarily have called for a second count. Both inspectors said they did not see security with any counters.

When the inspectors advised the outside security person, M.L., that they had found the establishment to be over-capacity, M.L. got his supervisor, Robert Grieg, who advised Ms. Wlodarek to speak with Kyle Skinner, Diavolo's general manager. While waiting for Mr. Skinner, Ms. Wlodarek said she continued to see people coming into the establishment even though it was already over-capacity.

Mr. Sharpe testified that Ms. Wlodarek asked Mr. Grieg if he was keeping a capacity count and Mr. Grieg replied "no" because it was "free-flowing" traffic.

The inspectors were cross-examined on the number of doors they were aware of for entry/exit in and out of the establishment. They were asked whether considering all of the doors, if the counts could have changed while they were counting. Both inspectors confirmed they were focused on their counts and only counted people in front of them.

The testimony of the two Hamilton Police officers, Mark Wright and Chad MacAvelia, was that they did not conduct any counts but that they observed the establishment was very busy inside. Officer Wright testified he remained outside and did not see anyone holding a mechanical counter. Officer MacAvelia testified he did go inside and that the crowd was shoulder-to-shoulder - he did not recall seeing any security staff.

The two police officers only learned the establishment was over-capacity when advised by the AGCO inspectors.

THE APPLICANT'S EVIDENCE

Counsel for the Applicant presented two witnesses, Robert Grieg, the general manager, who has been employed at the establishment for 5 years in the security role, and Kyle Skinner, who has been employed at the establishment for about 7 years. Mr. Skinner is Diavolo’s general manager and he said that security reports to him.

Mr. Grieg testified there were 3 security staff on duty that night, S.P., N.N. and M.L. The entrance is at the patio and the front door is only reached after crossing the patio. He said that S.P. was stationed at the entrance to the establishment and that he keeps count, using a separate counter for people coming in and those going out. N.N. was at the side door, which can only be used by patrons as an exit.

Mr. Grieg said he hands out mechanical clickers at the beginning of the evening, along with two-way radios and he communicates with his staff every 10 minutes to check on the capacity count. He also does his own count checks every half hour and he has been following this procedure for years. He disagreed with the counts of the inspectors and claimed the number of patrons in the establishment was under 90.

In cross-examination, Mr. Grieg said he did not recall the last count before the inspectors arrived. He said that the front entrance and side door staff each had 2 counters to track patrons coming in and those going out.

Mr. Grieg stated that he did not offer up his counters or the counter numbers to the inspectors because they did not ask him.

Mr. Skinner confirmed his role as general manager and that security staff report to him. He stated that the establishment's policy is to comply with capacity limits and that counters and communication radios are used to do this. He confirmed the interior capacity is 100 and capacity for the patio is 134.

CLOSING SUBMISSIONS

The Registrar’s Counsel, Ms. Taylor, said the matter was straight-forward and asked for the Order of Monetary Penalty to be confirmed as the evidence on over-capacity was clear.

Ms. Taylor noted the inspectors brought the over-capacity issue to the Licensee’s attention and that none of the Licensee's staff showed they had counters to dispute the results of the counts found by the inspectors.

Ms. Taylor submitted that until the hearing, there was nothing put forward about the Licensee’s staff having their own counts and it was only Mr. Grieg who at the hearing said security had counters and that his last count was 90. She argued that this went against the expectation that the security would have stated their counts the night of the inspection.

The Applicant's Counsel, Mr. Puskas, submitted that the Licensee's system to track capacity counts is more reliable than the AGCO system and that this is shown by the fact the 2 inspectors had different counts.

Mr. Puskas referred to Mr. Grieg's testimony that he regularly checks that the capacity count is in compliance and that his evidence that the establishment was under-capacity that night should be accepted.

Mr. Puskas argued the inspectors did not see any counters because they did not ask for them.

APPLICATION OF LAW TO FACTS

The Tribunal has carefully considered all of the evidence and submissions of the parties and finds that the Licensee breached section 43 of O. Reg. 719/90 and upholds the Order of Monetary Penalty levied against the Licensee.

For a finding under section 43 of the Regulation, it must be established that the number of persons in the licensed area, including employees of the licence holder, exceeded the capacity as stated on the licence. The onus lies with the Registrar to prove the allegation on the balance of probabilities.

In this case, the Registrar alleged that the Licensee failed to ensure that the number of persons on the premises to which the licence applied, did not exceed the interior capacity of 100 persons, as stated on the licence.

The Tribunal finds the facts in this matter are simple and straight-forward.

The evidence of the two AGCO inspectors is that they counted 127 persons (Wlodarek), and 131 persons (Sharpe) versus the allowed interior capacity of 100.

The Tribunal accepts the evidence of the inspectors that when they presented the over-capacity counts to the Licensee, there was no reply from the Licensee to show that they had counters, or physical counts, contrary to what the inspectors found.

Mr. Grieg's testimony that security had counters but they did not submit the counters or counts to the inspectors because they were not asked for their counters by the inspectors is not found credible.

Mr. Grieg's testimony that he had a last count of under 90 was also found contradictory. Specifically as in cross-examination he said he did not recall the last count before the inspectors arrived. The Tribunal finds it has no conclusive evidence to support Mr. Grieg's claim that the capacity count was under the allowed number, as stated on the establishment's liquor licence.

The Tribunal agrees with Ms. Taylor, as suggested in her closing submission, that the Licensee's security staff would have been expected to do their best to argue against the inspectors' findings and thereby avoid being charged for over-crowding when they believed that was not the case.

Accordingly, the Tribunal is satisfied that on a balance of probabilities, the Registrar has proved its case and finds that the Licensee breached section 43 of Ontario Regulation 719/90.

ORDER

The Tribunal confirms the monetary penalty imposed in the Registrar’s Order of June 14, 2013.

LICENCE APPEAL TRIBUNAL

Simon Dann, Member

Released: October 31, 2013